Top FAA Lawyers Reach Out to Industry

In the past, AVweb has characterized the FAA's top lawyers as "out of control" and "an evil empire" within the agency. So when the agency's chief counsel takes steps to improve FAA/industry relations, we think he deserves a pat on the back. That's exactly what happened in May 1999, when Chief Counsel Nick Garaufis convened a two-day "outreach session" in San Diego, attended by top lawyers from FAA headquarters and all regions, as well as aviation attorneys representing various branches of industry, including general aviation, airlines, and manufacturers. While the press was excluded from this session, AVweb did meet with Garaufis and Deputy Chief Counsel James Whitlow afterward to talk about the meeting. We also obtained an industry's-eye view from attendees John and Kathleen Yodice. Here are transcripts of both interviews.

By AVweb's Aviation Law Staff
| September 13, 1999

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This is an edited transcript of meeting held August 17, 1999, at FAA
Headquarters in Washington DC. Representing the FAA were Chief Counsel Nicholas
Garaufis, Deputy Chief Counsel James Whitlow, and Eliot Brenner from FAA Public
Affairs. Representing AVweb were Editor-In-Chief Mike Busch, Executive Editor
Jeb Burnside, and Aviation Law Editor Phil Kolczynski.

AVweb: This meeting was prompted by a brief conversation we had
with the Administrator last April in Phoenix at AS3 during which she told us of
a meeting that the Chief Counsel was about to hold in San Diego with some of the
aviation trade associations to discuss various legal issues of concern to
industry. Could you tell us why you called that meeting, who was there, and what
transpired?

FAA Chief Counsel Nick
Garaufis

Nick Garaufis: Well first of all, thanks for coming. I want you to
know that I've chatted with the Administrator about the efforts that you're
making at AVweb to provide a better understanding between the FAA and the
communities that it serves. I think that's a laudable objective, and I think
that you're achieving a good part of that, and you're to be congratulated for
that. I would also say that any time you set out to do something like that, it
takes a lot of effort on the part of everybody. Certainly you've put in a lot of
effort, and I know that the Administrator has done a great deal to work through
issues with you and the rest of the aviation community. Her objective, as you're
well aware, is to provide better communication which leads to a better
understanding.

I share her objectives, and it's important that we develop a greater
understanding with the part of the aviation community that we work with most
directly in the Counsel's office. That part of the community is the aviation
legal community, if you will. Hence, I decided early this year to call an
outreach session with the aviation legal community — the private bar which
represents the various interests in U.S. aviation: general aviation, the
airlines, the manufacturers, and every other element of the industry that has a
role in the work that we do in the Chief Counsel's office.

We had a very good meeting on May 25 and 26 in San Diego. It was a meeting of
lawyers, and we invited all the different constituencies to send their attorneys
to this meeting so that we could, in effect, let our hair down and talk about
what their concerns are, and to develop a better communication among ourselves.
The Administrator endorsed that outreach, she was very enthusiastic about it,
and I think that it as very productive.

Let me first say who was there, and then we can go into any details that you
would like to touch upon. We had with us legal representatives of general
aviation — Jack Harrington for the EAA, John Yodice and Kathleen Yodice for
AOPA — in total, we had almost two dozen attorneys from the private bar. Some
represented the airlines and other aviation interests. It came to about two
dozen leading aviation attorneys throughout the country, and they came with
different issues.

The main purpose of the meeting was to sit down with the leading enforcement
lawyers in the FAA from around the United States — from our enforcement law
division in Washington and from the nine regions — to discuss how we could work
better, and to understand how we could bridge any disagreements and
misunderstandings that we might have. We spent two days having discussions.
Presentations were made on various subjects, from fractional ownership to
informal conferences, and ran the gamut from the interests of large corporations
to individual certificate holders who fly for pleasure. We did take back some
IOUs to take a look at a few issues, and it was worthwhile.

The most important outgrowth of the meeting was that we agreed that we would
not only do our follow-up, but that we would also meet semi-annually to discuss
the developments since the last meeting — what have we done to address some of
these issues? — and also to address new issues that might arise before they
became causes celebres. This will provide an opportunity for new issues
to be discussed. I think that's really the key element here: that we have an
ongoing open discussion of issues of interest to the aviation bar and to their
clients.

So that was the purpose of the meeting. It was, I believe, generally
successful, and we are looking into various subjects that were addressed at the
meeting.

AVweb: Can you elaborate on those subjects? Was there any sort
of report or memo written after the meeting that would summarize what was
discussed, what was agreed to, and what IOUs you took back?

FAA Deputy Chief Counsel
James Whitlow

James Whitlow: We haven't done that yet. We'd planned on sending
something out to the group. Some of the commitments we made, though, are things
that we have been working on. One of them that I'd like to mention specifically
has to do with the reporting requirements for qualifying motor vehicle offenses.
One of the things we were told was that a lot of pilots were not aware of the
need to report on certain things like DWIs, DUIs, drug-related and
alcohol-related offenses — that they weren't aware of the need to report those
independent of their medical application. We received a very strong
recommendation that the FAA do more of an education effort. You saw some of that
at Oshkosh because we had some flyers there and some posters. We're trying to
see if we can work out something more specific, like a notice.

I think this is a good example of the kind of thing we talked about at San
Diego. Everybody in the room was interested in promoting aviation safety, but
there were different perspectives. The perspectives they brought to us on things
like informal conferences gave us the chance to perhaps modify some of the
things we're doing.

Nick Garaufis: One of the IOUs we took back was that we would examine
our sanction policy with regard to non-reporting of DUIs to determine whether we
believe that our sanction policy was balanced, and was being enforced
even-handedly throughout the agencies. I'm very sensitive to the need for an
even-handed enforcement approach. I do policy issues more than individual issues
as Chief Counsel — James [Whitlow] is really the chief enforcement lawyer of
the FAA. In terms of our enforcement policy, it's my wish and my objective to
have an even-handed enforcement posture throughout the Office of the Chief
Counsel, so that to the greatest extent possible there is an understanding on
the part of FAA lawyers — whether they are on the west coast, the east coast,
or anywhere in between, or in Alaska — that the way we enforce our regulations
is considered consistent, and that certificate holders feel confident that they
will be treated even-handedly wherever in the country they are located. That's
very important to me. The more we achieve in that area, the greater the
confidence will be on the part of certificate holders that they are being
treated fairly by the FAA.

James Whitlow: That fed into the discussion we had about informal
conferences. There was kind of a split between the folks who usually represent
air carriers, airline pilots, engineers and technicians — they had a view of
the informal conference that was a little different from what the general
aviation people wanted to see in informal conferences. Both views were a little
different from the way we viewed them.

We've always viewed informal conferences as the certificate holder's
opportunity to make their presentation to us. In the federal system, you have
the same thing with personnel cases — it's the opportunity for them to talk to
the person who's proposed the action and who is going to make a recommendation.
You go into it thinking that your job is to listen, and when you're asked
questions, they're questions that are meant to clarify things, but that your job
is to sit, listen, and to take back what they say.

The general aviation folks were clear — as were the air carrier folks —
that they wanted this to be more of a two-party exchange of information ... kind
of a discussion thing. Not in terms of settling, but in terms of, "What did I
actually do wrong? Why do you think this was wrong? What could I have done
better? Where can I improve?"

The air carrier folks sounded like they were looking for more like an
ADR-type process. They also wanted us to focus more on who we'd have at those
conferences, and to have people from our office who were prepared as attorneys,
and from ADR who were prepared as technical people, to have dialogs about, "What
happened? Why do you think it was wrong? What should happen differently in the
future?"

It was an eye-opener for me, because I'd always thought of the informal
conferences as being more of a presentation that we would hear, and then maybe
settlement discussions. They were focusing more on an exchange of information,
and maybe us actually telling them what we think they did wrong, so that they
could do something different in the future.

But perhaps the biggest surprise to me was how much energy there was on
fractional ownership. There really was a lot of interest and energy on
fractional ownership, even though that's not really an enforcement issue at this
point. It was an opportunity for us to hear from some of the different elements
— how they felt about the NBAA guidelines, what they were proposing in terms of
operations that didn't meet the NBAA guidelines. The first two hours or so of
the session were devoted to fractional ownership issues.

AVweb: Why were those legal issues, and why did they come up at
this particular meeting?

James Whitlow: Fractional ownership started off in some people's minds
as a simple legal issue, just an interpretation of the rules. It became clear as
we got involved in it, and as some of the attorneys representing the management
companies got involved in it, that there were a lot of overriding policy issues.
So it's being discussed right now. The commitment that the Administrator has
made is that before she makes her decision, she will have a couple of follow-up
meetings with entities and individuals. But there's still a lot of discussion
right now as to where you should go philosophically. There are also some
discussions about how it will affect other parts of the aviation community, such
as charter services. The attorneys who were there, even those who were not
specifically involved in representing management companies, were all interested
in hearing the presentations and talking about fractional ownership.

AVweb: Is there a time frame set for resolving this issue?

James Whitlow: I think we have scheduled some of the meetings with the
CEOs for sometime in September.

AVweb: CEOs of the management companies?

James Whitlow: At least the CEOs of the management companies. We might
want to expand that list a little bit. I believe what we have said is the middle
or end of September — I'm not sure on those dates — but that's what we're
trying to work toward. We'd like to bring this thing to closure as quickly as
possible.

Nick Garaufis: We also had a presentation and discussion on the
charging of "careless and reckless operation" in addition to other operational
charges. There was concern on the part of industry representatives that we
charged "careless and reckless" automatically — that the FAA attorneys would
simply add it to any kind of charge of an operational violation. We took back
the IOU to examine those cases — there are many cases that we need to look at
— where we charged "careless and reckless operation" as an ancillary charge,
and to determine whether we ought to be implementing some new procedures when
determining whether to use that as a charge. I think that it's useful for us to
go back and do that kind of an analysis, and I was pleased to make that
commitment to the industry attorneys who were in attendance.

We don't have that much time to do it before the next meeting. We really need
to have answers for the group when it reconvenes at the end of this year or the
beginning of next year. We've made a number of these commitments, and we need to
fulfill them.

AVweb: Will there be anything published after these meetings —
which apparently will happen on a regular basis — so that those who didn't
attend can find out what transpired at the meetings?

Nick Garaufis: The participants are at liberty to discuss what they
discussed at the meetings, and what they got out of the meetings. I think we can
be most productive in re-examining our procedures, and to the extent that we
want to change them, announcing the changes that we're going to make. It's a
matter of doing our due diligence, fulfilling our commitment to examine our
procedures and reflect on the criticisms, and then making changes where
appropriate and announcing those changes to the industry. It's one thing to hold
the meeting, and yet another thing to complete the process of review and
reaffirmation to the extent we reaffirm our procedures, and revision to the
extent we revise our procedures.

AVweb: In terms of re-examining your own procedures, did any
body bring up the "Hoover bill" or re-examination of internal procedures for
emergency revocations during the meeting in San Diego?

Nick Garaufis: There was a discussion about the issue of emergency
orders of suspension or revocation, and the commitment we gave was quite apart
from any legislative requirements that might be imposed upon us in the future.
My commitment was that we would look at the way in which we conduct our
examination of certificate holders where we are considering issuing an emergency
order of some kind. It's my concern that our procedures not only be fair and
legal, which I believe that they are, but there must also be a perception that
we are acting carefully, methodically, and in a balanced way to do substantial
justice, and at the same time protect the general public and everyone else who
has an interest in the safety of aviation.

So what I promised to do was to go back and look at cases where we have
issued emergency orders to determine whether it might be useful — as was
suggested at the meeting — to provide some sort of advance notice of our
intention to issue such an emergency order with some specificity of the
violations that would cause us to issue that order, so that the certificate
holder would have time to respond to the specific allegations. That was a
commitment I made at the meeting, and we are examining that. We put together a
committee within AGC [the Office of Chief Counsel] to look at that.

In addition, of course, you know about the Inhofe legislation in the Senate,
there's also legislation in the House. I think that irrespective of any
procedural changes that might be enacted by Congress, we need to look at this
from the standpoint of how we do business with our clients in Flight Standards
and the attorneys in the FAA regions and at headquarters so that we can make our
procedures better to the extent that we need to do that. That was my commitment
to the group in San Diego, and we are working on it.

AVweb: If it were done, this would be some sort of a letter
that would be subsequent to the Letter of Investigation?

Nick Garaufis: It could be that. It could take some other form. What
I've asked for is an analysis of recent case where emergency orders have been
issued, and recommendations as to how we might establish procedures in advance
of the issuance of emergency orders. These can be agency procedures, they don't
need to be statutory procedures. In fact, I think it would be useful for us to
develop our own procedures to the extent that we feel we need them.

Now I will point out that the administration has a position on the
legislative proposal. Whatever the adminstration's position is, that stands for
itself and you can discuss that with other folks in the agency and at the
department. But I think that my IOU — what I'd like to do — is to take a look
at how we actually handle these cases to see if we can do it perhaps a little
differently in order to afford certificate holders some additional notice of our
intentions. But that's an open issue. We've made a commitment to look at it, we
are doing that within AGC, and we'll be consulting with Flight Standards on it
as well.

AVweb: In addition to the notification issue, isn't there an
issue that involves trying to get some sort of uniform standards throughout all
of the regions as to what sort of infraction calls for an emergency order? For
example, the Western-Pacific Region has the highest emergency revocation record
of any regions, at least according to the GAO report time frame up through 1997.
I think the perception of fairness that Nick alluded to is really important when
it comes to emergency revocations for two reasons: first the perhaps
disproportionate number of emergency revocation actions in certain regions, and
second the amount of time that elapses during which the FAA investigates matters
and then decides to take emergency revocation action. That perception in the
private bar and among aviators is really raw.

If we recall the GAO report numbers correctly, it's approximately 25% of all
revocation actions in the Western Region and the Eastern Region are emergency
revocation actions. And yet the interesting statistic was that the Southern
Region has more GA pilots than any of the other regions, so we don't think it's
a simple linear relationship between the number of pilots and the number of
revocations. There are more factors at play here. The GAO study only went up to
1997, so we're really curious to see what actions have been taken in 1998 and
1999.

The other thing that was interesting is that the study suggested that the
average emergency revocation action took four months of investigation before the
revocation was submitted to the airman. And yet, the first indication the airman
had that there was going to be an emergency action came when it was taken.

Nick Garaufis: In our effort to examine this, we're looking at all the
regions, and where we see that there may be some disproportionate percentages, I
would then want us to look at those regions to see whether there are some
unusual circumstances which resulted in those numbers. There may be some
circumstances, there may be a policy in those regions on the part of Flight
Standards in consultation with the Office of the Chief Counsel as to what
constitutes a violation which necessitates an emergency order of suspension or
revocation. To the extent that we can even out our policy, if there are
distinctions being made in one place or another, this examination will help us
do that. I won't reach any conclusions in advance of looking at these different
locations, but I think the whole idea behind the enforcement outreach and the
subsequent studies that we're doing is to try to maintain a national standard
which people understand and which we then implement on an ongoing basis. I've
made note of those two regions, and I'll ask our team to look at those two
regions so we can get some answers to your question.

James Whitlow: Let me mention the discussion we had at San Diego on
the interpretive rule [on pilot readbacks to ATC]. I think that the
Administrator tried to make it very clear at Oshkosh that the interpretive rule
was not an attempt to change anything as far as we were concerned. The rule
itself talks about the line of NTSB cases that were coming out that appeared to
us to be inconsistent with what everybody has understood to be the relationship
between controllers and pilots for years. I mean, it's a mutual relationship,
both sides have a responsibility to hear and communicate clearly. If you look at
the cases that were cited in the notice, the board seemed to be going away from
that.

The interpretive rule was not intended to start something new or to create a
new category of violation. It was the process that we could use legitimately to
make clear to the board that the relationship that they should view now is the
same as it has been for the last three or four decades. I don't think you're
going to see a change in the way things are being charged. You're not going to
see new types of enforcement actions. But as the Administrator said, the
interpretive rule was to make it clear that what we have all understood to be
the relationship between pilots and controllers in terms of communication is the
standard that the board should apply.

You know, one of the problems that you have if you try to do a summary of a
meeting is that you find yourself in the position of trying to characterize how
other people felt about what it is that happened at that meeting.

Nick Garaufis: I think it would be useful for you to speak to some of
the folks who where there, if they wish to discuss their impressions of the
meeting and what was achieved on those days. It's for us to try to develop
solutions to some of these issues between now and the next time we meet so that
we have something to report back then, or before that next meeting. I think
James' point is well-taken that we have our perception of what happened there,
and then there will be other people who have their own perception. They may put
greater emphasis on certain issues and discussions that we put on those issues
and discussions. So I would invite you to speak to some of those folks as
well.

AVweb: Prior to the San Diego meeting, we had asked that Phil
Kolczynski be allowed to attend the meeting on AVweb's behalf, and at
first Mrs. Garvey said yes, but later it was decided that AVweb's
attendance wasn't appropriate for some reason. I do think it would be useful if
someone was there — it should be an aviation attorney — who was there to take
notes and report on what transpired.

Eliot Brenner: If we did that, then I've got to do AvWeek, then
I've got to do Daily, ...

AVweb: That was the argument at the time. But clearly the
people who participate in a meeting like this are going to be only a tiny
fraction of the interested parties.

James Whitlow: I think you have to remember, though, that this is not
just FAA, we also are inviting private attorneys in to have the kind of
discussions you don't what to have those kind of limitations on. For better or
for worse, having the press there changes the nature of the conversation. Not
only what we can say, but what they can say.

I don't want anybody thinking that we wanted to have this secret meeting
where people got together. The major focus of this was to set it up so they
would feel free to talk to us as well as our folks feeling free to talk to them.
It's hard to get a group of attorneys together and have that kind of discussion
without them being worried about whether you're going to use what I'm saying
later on against me.

Nick Garaufis: I've been an attorney in private practice, and you
approach a discussion where it's "on the record" in the sense that every word is
being written down differently from a discussion where you can be fulsome in
your description of your views, and at the same time recognize that what you say
is not going to potentially disparage a client. One of the benefits of a meeting
like this is that the attorneys — both the FAA attorneys and the private
attorneys — were able to in effect "let their hair down" and talk pretty darn
candidly about each other's approach to the enforcement process.

There are attorneys in the private bar who represent client interests and
make arguments which they know are thin, and there are attorneys at the FAA who
might on occasion prefer that their client would approach a problem in a
different way. But we have our clients, and they have their clients, and so we
try to represent our clients' interests in the best way we know how.

This meeting afforded everyone the opportunity — unique in the recollection
of all the people who were at the meeting — to actually sit down and talk about
what's on their minds, and the best way of doing that is the way we did it, I
think. The sense I received after the fact from a number of the people who
attended was that because they were able to be candid and open and pointed in
their comments and criticisms, it had greater benefit. One of the great benefits
was that I had all of the chief FAA enforcement lawyers from all over the
country sitting in the room together, listening to the criticism at one time. It
wasn't someone's talking to someone in Western-Pacific, and then someone's
talking to someone in New England. It's everybody there at the same moment
hearing the same thing.

My charge to the FAA group was that we need to address these issues
constructively and promptly, and where we need to make changes, those changes
must be made. I think the message was received pretty clearly.

AVweb: Is the next follow-up meeting scheduled?

Nick Garaufis: No, I assume it will probably be in January, probably
about the same time as the ABA Air and Space Law Forum meeting.

AVweb: Here in Washington?

Nick Garaufis: I would expect the next meeting would be here.

AVweb: What changes have occurred as a result of the
meeting?

James Whitlow: Well, you can see immediately the emphasis that we did
put on the driving-related offenses at Oshkosh, and what we're going to try to
follow up doing. We talked also with AVR — Flight Standards — about some of
the things that these folks proposed that we do on the informals. One of the
areas we really couldn't agree with them on was the idea of sending people out
again, rather than having them at headquarters or by telephone. There are just a
number of budget considerations so we couldn't do that. We have done our review
on such things as the emergencies, the careless and reckless. Fractional
ownership was more of a discussion without commitment at that meeting, because
everything else was on-track. I would like to think there was a lot more comfort
and understanding on the interpretive rule issue, but again I don't want to
speak for them.

Nick Garaufis: I think that my comments at the meeting on the subject
of emergency orders — which I won't specifically characterize — sent a message
to the FAA counsel present that we should take a very hard look at alternative
means of conducting enforcement before resorting to emergency orders. I'm very
sensitive to the criticism that we've received on this subject both in the
aviation community and on Capitol Hill. I think that in working through with our
clients when we feel we need to do these emergency orders, there may be cases —
and we won't even know about them because they may not get to that point —
which in the past might have resulted in an emergency order, where now the
enforcement attorneys in the regions might take additional steps, working with
Flight Standards, to work through the enforcement issues with the certificate
holder. It's my hope that we can voluntarily and very carefully minimize the use
of emergency orders to the very narrow circumstances where safety is compromised
in a very immediate sense. So that was my message to the FAA attorneys at the
meeting, at the same time we promised to go back and look at how we handled
these emergency orders in the past and then perhaps develop some protocols for
the future in the agency.

Nick Garaufis: No, what I'm saying is that if a way can be found to
avoid using an emergency order, if certain steps can be taken to avoid using the
emergency order, we — along with our client — have to think ahead to ways in
which we can avoid using emergency orders. I don't reach the conclusion that's
implicit in your question. All I'm saying is that wherever we can find a way to
avoid using an emergency order, we should avoid using the emergency order. I
want to look prospectively, I don't want to look retrospectively in that regard,
because I think that at least on the part of the FAA attorneys and other FAA
staff who I've dealt with over time, where they propose issuing an emergency
order, they do believe that there is an immediate threat to safety. But the
question is, further back down the road, could we have taken other steps that
would have avoided the issuance of an emergency order? I'm not concluding that
we could have taken other steps, I'm just asking everyone to go the extra mile
and think ahead. It's the difference between thinking about only the next step
and thinking two or three steps into the future. I think that request on my part
was well received by the FAA attorneys in attendance, and I'm hopeful they will
take action on that request.

AVweb: Let's move on to some other items. For example, the
Streamlined Administrative Action Program.

James Whitlow: That's not us, that's really Flight Standards.

AVweb: Well, we just had a chance to read the new order on the
program, and there seems to be two problems with that order from our perspective
that do seem to be strictly legal issues. At the time the original "ticket
program" was announced, we were fairly vocal about a few things that were wrong
with it, and some of those things have been fixed — for example, the "frontier
justice" nature of handing somebody a ticket on the ramp has gone away in the
new order, and that's good. But two legal problems seem to remain unaddressed in
this order. Perhaps the most serious is the Privacy Act issue. That is, an
administrative action — which is essentially an allegation by an FAA inspector
that has not been tested — goes in an airman's file for two years, which seems
legitimate for purposes of progress enforcement policy, but it is available to
anyone under the Freedom of Information Act (FOIA), which means that an airman's
employer or an airman's insurance company has access to it. That's a real
problem, in our view.

Clearly, the purpose of the streamlined program is to increase the use of
administrative actions. That's how the whole thing started. The use of
administrative actions for progressive enforcement purposes like a noble
enterprise, and streamlining the procedure to make it possible to use it more
easily seems like a reasonable thing. But we don't want people hurt
unnecessarily. An administrative action represents a "he said" situation where
the inspector says to an airman, "you did something bad and I'm going to write
you up for it, but we're not going pursue legal enforcement action this time ...
but if you do it again, we will." The airman doesn't have any meaningful
opportunity to challenge such an administrative action. There's no real
recourse. Since that's the case — since it's just an allegation — it seems to
us that the FAA is entitled to keep that information in the airman's file for
two years and to throw the book at that airman if he does it again, but to have
that information available to anyone in the general public who asks for it seems
like a real problem.

We understand that it's been that way for ten years, and that this is nothing
new. But it was an old problem, and now it's a magnified problem because these
things are going to be used a lot more often.

James Whitlow: That's why I reacted the way I did when I said "this is
not us" because I think if you talk to the Flight Standards people, they have a
different view about what they did. For example, when people talk about the
"frontier justice" of the ticketing program, from their point of view and to
some extent from our point of view, it wasn't frontier justice — it was an
opportunity to solve things informally, which is what we understood people were
pushing for even back with that GAO audit. So I think there was a lot of
surprise at how the ticket was suddenly being viewed. Right or wrong, there was
a lot of surprise.

What I believe we tried to do with the change to the ticketing program was to
kind of put us back where we were before the idea arose of handing something out
at the ramp. We were not making changes to the administrative process. As you
said, those things were releasable under FOIA for ten years, there isn't any
argument we can make now to start withholding it, and that wasn't the plan. The
plan was to move away from the ticketing program, to move away from the
objections that were raised, and to kind of maintain the streamlined
non-enforcement program with the same type of administrative remedies that we
had before.

I just don't feel comfortable answering some of the policy questions on the
underlying issues, because I know how hard Flight Standards tried to work to be
responsive to what they thought were the real concerns. It's not that I want to
dodge the question...

AVweb: But Flight Standards can't really do anything about the
privacy issue, can they?

James Whitlow: On the Privacy Act issue, we did not change our
administrative action process. We are now where we were for the last ten years.
We don't have a legal justification for suddenly starting to withhold things
that we have been releasing for the last ten years. The change to the ticketing
program was not designed to change our administrative action program. There
isn't a hook here, or a basis to start withholding.

I just feel more comfortable with the answers to some of the questions you've
asked coming from Flight Standards, because they tried so hard to be responsive,
and if there are areas where you feel they haven't been responsive...

AVweb: We don't know how Flight Standards could answer a
question like that...

James Whitlow: I thought there was really a lot of acceptance of the
idea — I remember the GA coalition meeting where people clapped and applauded
— that we were scrapping the new ticketing program and going back to where we
were before, with some internal streamlining within Flight Standards. I mean,
part of this program was to give the Flight Standards inspectors greater
authority and to reduce the amount of coordination that had to do. I thought
everybody was really happy with where Flight Standards wound up on this, but
that it was also recognized that we weren't making changes to certain elements
of the enforcement program such as the administrative process.

AVweb: Jim, a proposal for you on a way that Legal could
possibly work with Flight Standards and protect airmen to some extent while at
the same time fulfilling your responsibilities under the Freedom of Information
Act and the Privacy Act. In the most recent documents about the joint handbook
bulletin for the streamlined administrative action program, there's some new
material that I liked. It is a definition that explains how administrative
actions work and what they really constitute. Is there a way to make sure that
any records that are disclosed to the public or to prospective employers —
which is really the issue here — contain not just the letter of warning or
letter of correction, but also this explanatory material that makes clear to the
recipient of the records that this does not constitute the finding of a
violation, it is not a legal enforcement action, and so forth.

James Whitlow: Tell you what, why don't we get together and have an
offline conversation to explore some of this?

AVweb: Okay. Can we move on to the NPRM on protection of
voluntarily-submitted information which was just published this week? It would
appear that it's going to create perhaps even more concern on the part of airman
that they will be vulnerable to enforcement actions when their employers turn
over voluntarily-submitted information to the FAA, because the NPRM explains
that although the designated information itself won't be used as evidence in an
enforcement action, it can provide the "lead" that will lead to the enforcement
investigation and the collection of evidence that will be used in the
enforcement action or in a criminal action. We're concerned that this is going
to create even more suspicion and more fear on the part of airmen that their
employers will turn over more information to the FAA which will be designated,
but then that information will be used to develop an enforcement case against
the individual airman.

James Whitlow: That's interesting, because I know when that issue came
up specifically related to the FOQA program, that there was comfort that we
could draw that distinction between information that would be used directly in
court, vesus those situations where the information might generate an
investigation but wouldn't be relied upon. It's also something that was
discussed in the ASAP program about the extent to which, if you got an ASAP
report, it wasn't a covered event, but you still could independently
investigate, whether or not you could actually use the ASAP report as a piece of
evidence versus when you could initiate an investigation based on it.

I think the answer to me is that you need to see what the specific programs
are we're talking about, in addition to the general rule that authorizes us to
invoke that statutory authority. I think the way we had envisioned it was that
we would have the general rule out, but then specific programs would be
established the way we were trying to establish FOQA through either a separate
rule that would talk about how the information would be used, or if we can,
through a policy statement. I say "if we can" because although right now we do
have a FOQA policy statement out, our understanding is that everybody still
wants there to be a rule. It may turn out that we may have to do all these
things through rulemaking.

But anyhow, my answer right now — what I would like to see the public be
made aware of — is that you need to also look at what we're going to
specifically do and how we're going to specifically implement the program. The
feedback we've been getting so far on the FOQA program and the ASAP program is
that this isn't really that big of a concern that's going to sabotage the
receipt of voluntarily-supplied information.

Nick Garaufis: I think we issued the NPRM on July 26th, and there's
time for public comment now. Obviously, your views and the views of others who
make submissions to the docket are going to be taken into consideration before
we finalize any rule. I would encourage anyone who has concerns or suggestions
to formalize those in a submission to the docket. We will be reviewing all those
submissions when the docket closes, and making changes to the rule that we feel
are appropriate when we issue a final rule.

I understand your concern. You have to recognize that the statute that
authorized us to establish such a rule was enacted because there was a concern
that in voluntarily providing such information, it would then be reachable
through Freedom of Information Act requests, and that in establishing these
programs such as FOQA, we wanted to protect that information from general
dissemination. With regard to criminal investigations, there are many ways for
prosecutors to access information of this kind, so I don't think the real issue
is whether this kind of information could be reached for purposes of conducting
a criminal investigation. The real issue here is the comfort level of the
industry in providing this information voluntarily, so that information that
they deem to be sensitive is not shared generally in the community. That's what
this legislation and the proposed rule seek to address.

AVweb: We did want you to comment, if you would, on where we
stand with regard to the airman database. Last winter, the Administrator told us
that she was pretty sure that this issue was going to get resolved and that the
addresses were going to be made available again to industry, with the
appropriate protections. The last thing we heard was that everyone was frozen
waiting to see what Congress was going to do.

Nick Garaufis: We anticipate that the reauthorization legislation will
resolve that problem, and we're hopeful that this will be taken care of in the
near future by an act of Congress. It was and is our position that the Privacy
Act prohibits the dissemination of the airman home addresses. This is not a
policy position of the Chief Counsel. It is strictly an interpretation of the
Privacy Act. I believe that the practice of providing airman home addresses has
been extremely useful in the education of the aviation community, communication
within the aviation community, and has in many ways provided a nexus for
critical information and improved safety.

It's unfortunate that when we examined the law, we were obligated to reach
the conclusion that we did. But we also feel that should the law change, we'll
go back to the status quo before, and I'm sure that the community will be
well-served by the dissemination of this information. I just want to make it
very clear that we reached the conclusion as a matter of law, we didn't reach
the conclusion as a matter of policy that we could not disseminate the airman
home addresses.

AVweb: If the language on this issue does not wind up in the
reauthorization bill, is the FAA prepared to act independently on this?

James Whitlow: We have two proposals that we've given — things such
as notice to provide the opportunity for people to help build that list — and I
think we'd still be willing to offer those. But the bottom-line issue is that if
we don't get the additional statutory authority, we would not be able to back to
where we were before. But I do want to make it clear that the reason why we did
have a period of time where we were releasing the list is because we were trying
so hard to come up with legitimate legal justification, but that when the
Supreme Court issued the decisions that it issued about the fact that home
addresses do not provide any information about the agency's performance of their
duties and therefore cannot be released under the Freedom of Information Act, we
no longer could stretch our interpretation. We had actually sent over routine
use — some of the proposals that are being made now — we had proposed those —
we had tried that route. But once the law got to the point where it got, we
could not with a straight face make a legal argument that would justify
releasing those names. But I do want to make clear that we did try — we did
try. As I said, the proposals on routine use were things we'd already pursued.
There just came a point when, with the current state of the law, we could no
longer do that and act consistent with the Privacy Act.

Nick Garaufis: Our review of the law came up in the context of some
complaints we'd received from airmen that the information was not releasable. We
looked at it, and we looked at the case law, and we looked at the statute of the
Privacy Act, and we concluded that indeed those complaints were well-founded
under the law.

This is an edited transcript of telephone interview held September 8,
1999, with John and Kathleen Yodice of Yodice Associates, both of whom attended
the May 25-26 outreach session in San Diego as representatives of the Aircraft
Owners and Pilots Association. John Yodice has served as AOPA's General Counsel
for many years, while Kathleen Yodice worked as an attorney in the FAA's Office
of the Chief Counsel before joining her father's law firm in 1998. The interview
was conducted by AVweb editor Mike Busch.

John Yodice: I have read the transcript you sent me, and I believe
Kathy has as well.

AVweb: We thought it would be interesting to get the
perspective of an industry participant in the FAA's May 25-26 outreach meeting,
and naturally we thought of you.

John Yodice: Well, thanks! I appreciate that, and we're happy to
cooperate with you in any way we can. I can give you an overall impression, and
then if you'd like to get into any of the specifics, we can do so. I'm sure
Kathy has an overall impression that may even be a little different from
mine.

AVweb: That's exactly what we're looking for.

John Yodice: Let me start out by saying that I thought the idea of the
outreach session was a very good one. It's really part of the Administrator's
effort to keep a line of communication with the industry, in hopes of solving
problems before they get very big. In general, Mrs. Garvey seems to have an
emphasis on communication, and I think she was imbuing the Chief Counsel's
Office with that same philosophy. At least that's the impression I got of how
the meeting came about.

From that perspective, it was very good. There was a lot of opportunity for
interaction with the FAA attorneys, and they seemed to be listening. I'd say
some of the attendees were more into the spirit of it than others. Some were
kind of defensive and a little antagonistic, but most were very cooperative and
willing to listen.

The most noteworthy thing to me, however, was that this meeting took place in
May and nothing has come out of it since then ... despite promises that
there would be some sort of communication with the attendees, that some projects
would be set up, etc. But except for a chance encounter that [EAA's] Jack
Harrington and I happened to have with the Chief Counsel where we talked a
little bit about it, as far as I know there's nothing formal that's come
out of the meeting. And it's been over three months now.

AVweb: Now, you read in the transcript that apparently it's the
intent of the Chief Counsel to have these outreach sessions twice a year, and
that the next one would probably be in January?

John Yodice: Yes, I learned that for the first time from your
interview transcript.

AVweb: I got the impression during our interview that the Chief
Counsel felt that this January date represented something of "a gun to his head"
because he knew he'd be called to report at the January meeting on what progress
the FAA had made on the various IOUs they took back from the May outreach
session. So perhaps there'll be some tangible progress visible in January.

John Yodice: Well, we'll see. Kathy, what were your impressions?

Kathleen Yodice: I echo John's surprise at the Chief Counsel's
comments about having regular semi-annual meetings, because I don't recall that
being decided or even discussed in San Diego. Actually, the only thing I recall
talking about — and it might have been in one of the side conversations — was
that maybe these things need to be held more often, but maybe not annually ...
maybe every two years. At least that's my impression of what was talked about.
Because the wheels seem to turn so slowly at the FAA that there's not an awful
lot that can be done in a year, much less six months. So that was kind of
surprising when I read your interview.

But I agree that I felt the session was very well received, very well
attended, and very well conducted. I think that's even evidenced by some of the
"surprise" comments that Nick Garaufis and James Whitlow made to you during your
interview: that they we "surprised" to hear this, and they were "surprised" to
hear that. I think that in and of itself evidences the success of the session —
that this is what the people inside the Chief Counsel's Office need to hear so
that they can function in a more efficient and responsive manner. If they don't
hear these things, how can they know that they happen and be able to respond to
make the system work?

The negative side of that was that some of the information I got following
the meeting — in personal and professional discussions with regional FAA
attorneys who had not attended the meeting — was that the word that had gotten
back to some of them was that it had been an "FAA bashing" session. I was
disturbed to hear that, because my impression was that nobody was bashing the
FAA in general or the FAA attorneys in particular. It was constructive
criticism, which is exactly what the Chief Counsel asked that we do. Certainly
we did complain about some things, but we weren't complaining to be mean. We
were talking about problems that we identified as problems, and that maybe we
could work through together. So I was a little disappointed that maybe the word
was getting back to the field that people were not being constructive in their
criticism, when my impression was that that's exactly what it was — a
constructive criticism session recognizing both good and bad.

The last thing I'd like to echo again is that there has been nothing in the
way of visible progress since May, and part of that might be because of what
Nick and James told you: that they're still working on projects. But one of the
things we were promised (my word) is that the FAA would circulate a list of the
names, addresses and telephone numbers of the attendees, so that we all could
have them. There were a lot of people there from industry that met each other
for the first time. But even that has not been circulated, which is kind of a
disappointment.

AVweb: During our interview, we asked the Chief Counsel whether
anything had been written down to memorialize the meeting from the FAA side, or
whether anything would be written down. It was pretty clear that they hadn't and
they wouldn't. It seems to us that important meetings like this should have some
sort of "proceedings" recorded and distributed to the participants afterwards,
and that there should be some record of what transpired. But that was clearly
not their intent.

You mentioned earlier that you felt that the May outreach session was
instigated by the Administrator as part of her initiative to improve
agency/industry communications. Was it your impression that the Chief Counsel
was making this outreach effort enthusiastically, or did you feel that he was
doing it "under orders" and reluctantly?

Kathleen Yodice: I think that's a fair question, and one that I was
going to answer in a different way. I think the answer was that the Chief
Counsel went to San Diego enthusiastically. Before you asked the question, I was
going to share with you my notes of Nick Garaufis' opening remarks, which are
pretty consistent with what he told you: that the Chief Counsel's Office is
interested in looking at things differently, recognizing that they have a
statutory objective, but wanting to meet that objective efficiently and working
with industry as a partner. He pointed out that the agenda for the meeting was
the industry's agenda — these were items that industry wanted to bring to the
Chief Counsel's attention. I do think he was enthusiastic, above board, and
straightforward in wanting to have this work efficiently and productively.

AVweb: How was the agenda set? When you were originally invited
to this meeting, did the FAA ask you to submit discussion topics in advance?

Kathleen Yodice: Yes, we received an initial invitation letter, and in
the letter they asked us to suggest agenda items.

AVweb: I gather that various industry participants made formal
presentations to the group, including both of you. How was that arranged?

Kathleen Yodice: I think that the Chief Counsel's Office took all of
the suggested agenda items, distilled them down to the ones that seemed "worthy"
of putting on the agenda, and then assigned people to those subjects and called
the people to ask if they would be prepared to discuss that particular item.

AVweb: All the regional chief counsels were in attendance?

Kathleen Yodice: Every regional counsel was there — from the nine FAA
regions as well as the two regional counsels from the Technical Center and the
Aeronautical Center.

AVweb: Did the FAA regional counsels say much, or did they
basically listen?

Kathleen Yodice: I think the regional counsels took more of a
listening role.

John Yodice: Not as active a participation as you would have expected,
although there were some presentations by FAA attorneys.

Kathleen Yodice: In fact, I was on a panel with [Chief Counsel for the
Central Region] John Curry. So perhaps I misspoke: There was some affirmative
involvement by some of the regional counsels. But for the most part, it was
industry talking and the FAA listening.

AVweb: One of the topics that came up in our interview with the
Chief Counsel was that of achieving more consistency in enforcement policy
across the various FAA regions. Did you get any impression of the prospects for
progress on that front?

John Yodice: Well, it came up not as a major item, but in connection
with some of the individual agenda items — for example, the emergency
revocation discussion, and especially the GAO report which said that there was
little consistency between regions on what cases are subject to emergency orders
and which are not. It also came up in connection with the issue of the FAA's
"automatic" charging of careless or reckless operation in connection with most
operational violations. The FAA said they would make an effort to make these
things more consistent. It came up in connection with certain agenda items, but
it was not a major agenda item itself.

Kathleen Yodice: Careless and reckless was an area where I did think
we got a difference of opinion from some of the regions. Some regions were
saying yes, we typically put it in, while other regions were maintaining that
they looked at each case and determined whether to charge careless or reckless
on a case-by-case basis. So this was a case where consistency came up in the
context of a bigger issue.

AVweb: In our interview with the Chief Counsel, it appeared
that if any of the agenda items were going to see some tangible progress by the
January meeting, it would probably be on the issue of emergency orders. Do you
agree?

John Yodice: I agree, although I think that this was one that they
were very defensive about. This is one where there was a lot of antagonism.

AVweb: Really? In our interview, Garaufis made some strong
statements about his intention to come up with internal policies that would
reduce the use of emergency orders to an absolute minimum.

John Yodice: I think if you were to have a spectrum of the attitudes
evidenced by the FAA, certainly Garaufis was the most enthusiastic about the
whole program. Then it kind of ranged down. I would certainly say that the
Deputy Chief Counsel was not as enthusiastic as the Chief Counsel. There were
some regional counsels that were very enthusiastic, and some that were not.

Kathleen Yodice: You have to understand the history. This is something
that has been wrestled with for years, going back to Greg Walden as the Chief
Counsel. How can a policy on emergency revocations be identified that is logical
and understood? That's probably what we felt at this meeting: that it's
difficult to say that someone should be revoked because they lack
qualifications, and then establish a policy as to when it should be emergency
and when it shouldn't be emergency. I had the sense that some FAA people thought
that a line could be drawn, while other FAA people thought that there's no way
to draw the line and that all revocations should be treated as emergency
revocations.

AVweb: Aren't there two distinct, separable issues here? One,
the difficult question of whether some of the orders that are now being handled
on an emergency basis don't have to be; and two, the much easier issue of
providing some advance notification and a response period wherein a certificate
holder can present arguments why his certificate should not be revoked.

John Yodice: If there was an aspect that got some sympathy from the
FAA, the latter was one. It's not the major point, but certainly they were hard
pressed to defend that it takes many months to work up a case, and then all of a
sudden it comes out as an emergency revocation without any prior notice to the
respondent. I think the FAA is looking at the question of how to give them a
little bit of advance notice, so as to make the playing field a little more
even. But that's certainly not the major problem. The major problem is that we
need someone who can adjudicate these matters, and justify whether it is an
emergency or not, so that a person is not grounded on whim and caprice, which
has been happening in some cases. Of course, emergency revocation has been
proper in some cases.

AVweb: Isn't prior notification an essential first step to any
solution, since without notification, there's no way to appeal the revocation
before it's too late?

John Yodice: In my view, that's the lesser of the two problems, but it
is a problem.

Kathleen Yodice: There were regional attorneys who felt no obligation
to notify someone of what they were intending to do. That brings us back to the
internal differences of opinion within the FAA on how to handle this particular
policy.

John Yodice: The proof of the pudding will be in the eating. We have
three months under out belt with nothing, except perhaps an indication that
there will be another meeting. You know, that's a Washington tactic: have
meeting after meeting, and that justifies doing nothing.

AVweb: But won't having these meetings on a regular basis,
especially on a semiannual basis, put some pressure on these folks to make some
forward progress, because they know that they're going to have to face this
group every six months and report on what's been accomplished. It's surprising
that the FAA didn't notify the industry people who attended the San Diego
session of its intent to have these meetings on a regular basis.

John Yodice: Well, what probably happened is that we spent two days
with the Chief Counsel, and then the FAA lawyers met by themselves on the third
day. This is probably a product of what happened on the third day, to which we
were not privy.

AVweb: Again, it's really too bad that the FAA didn't have
someone writing this stuff down and then distributing it to the participants
afterward. But apparently, for whatever reason, they don't want to do that.

Kathleen Yodice: I read in your interview when they said that they
were also worried about the "chill aspect," and I have to say that might have
some merit to making these sessions as open and candid as they are. Maybe it
should be left up to all of the participants who attend these things — FAA and
industry alike — to decide. I don't know. I can see both sides of that
argument.

AVweb: What can you tell us about the discussions that took
place concerning informal conferences?

Kathleen Yodice: In fact, this was the agenda item that I was asked to
speak on. Of course, I spoke on it from the general aviation perspective —
specifically, the perspective of the general aviation pilot who may be involved
in an enforcement action, and the importance of the informal conference to such
individuals. Of course, it is statutorily required, but it is also an
opportunity for the airman to face his accuser, if you will. Sometimes, just
that ability does a lot in making the case settle more easily. So we talked
about how everybody needs to be reminded of the basis for the informal
conference, which is that it is the statutory opportunity for the airman to be
heard when the FAA may not have all of the information.

But there was also a lot of discussion about what the airman brings to the
informal conference and how he expects the informal conference to go, versus
what the FAA believes the informal conference is meant to accomplish. The FAA,
pretty much as a whole, believed that it was a listening session — that they
would come to the informal conference and hear what the airman has to say. The
airman, for the most part, was going to the informal conference not just to say
whatever he or she needed to say, but also to hear the FAA's position and to
learn why the FAA was taking a particular position. That's where the two sides
didn't seem to meet as to what exactly the informal conference should entail and
how the dialog should be conducted. So there was quite a bit of discussion as
far as that was concerned.

I don't mean to suggest that there was unanimity of opinion among the
industry participants, either, because industry appeared to be split also as to
what needs to be brought to the informal conference, and what needs to come out
of an informal conference. For example, there were some industry participants
that said they go all out at the informal conference and present everything in
the nature of getting the entire case resolved at that point, while there were
others who said that they go to the informal conference in the hopes that the
matter might be settled, but not to present their entire case.

Another item that came up was the use of telephonic informal conferences.
There was an overwhelming majority of industry —and I think even within the FAA
— a dislike of telephonic informal conferences and a preference for
face-to-face informal conferences. Industry encouraged the FAA to go back to
affording more opportunity to have face-to-face informal conferences.

AVweb: Isn't that always an opportunity afforded to an airman
and his attorney who are willing to travel to regional headquarters for the
conference?

Kathleen Yodice: Yes, that's always an opportunity if there's a
regional office available at which the individual can meet face-to-face. But
we'd like to see such conferences offered at more locations. For example, we did
mention that there was a great opportunity for Florida airmen when the Orlando
field office was opened, and that this would be a much more financially
reasonable location for a face-to-face conference than requiring the airman to
travel to Atlanta. Likewise, the FAA now does have a field office in Cincinnati
at which face-to-face conferences could be scheduled.

Another item that was discussed was the preparation of FAA attorneys at the
informal conferences. Specifically, that there seem to be instances where the
airman or air carrier attended an informal conference and the FAA attorney or
FAA inspector were ill prepared, so that the conference didn't seem as
productive as it could have been with a more prepared audience. Sometimes the
FAA inspector or the FAA attorney would come to the informal conference saying,
"we don't have any authority to resolve this case with you, but we're here to
listen to you and we'll pass it on to the people who do have that
authority."

One more thing that was discussed in the context of informal conferences was
the FAA's practice of obtaining statements or information during the informal
conference, and then using that information at a later time to prove their case.
Some felt that there was a need for the FAA to reaffirm its policy not to use
the informal conference as an evidence-gathering session. There were some fears
by industry attorneys that there was a use of some of the information made
available at the informal conference as the FAA's proof.

Overall, however, there were positive statements made about the informal
conference policy — that it is a very important part of the process, and that
it is something should be maintained and respected — and that for the most
part, people who participate in informal conferences find them to be productive.
This is an example of a situation where, for the most part, the system works —
but there are some constructive criticisms to be made. The FAA may have felt
that we were bashing them, but the criticisms we were making were of the
exceptions rather than the rule.

AVweb: Did the FAA take back any specific IOUs in this
area?

Kathleen Yodice: Possibly revisiting the issue of affording more
opportunity for a face-to-face informal conference. I think they were going to
go back and look at whether maybe they could travel to more Flight Standards
offices so that there would be greater opportunity for an in-person conference.
But judging from your interview with James Whitlow, I get the impression that
the answer was going to be "no."

AVweb: What about the matter of the FAA attorneys and
inspectors being better prepared for the informal conferences? Isn't this an
important issue?

Kathleen Yodice: I think some of this was the responsibility of the
regional counsels to get back to their offices and pass on the comments to their
people, and maybe have the practices in their offices change as a result. So
even thought there might not have been a specific IOU, I'm confident that these
comments made it back to the field so that maybe in those circumstances where
those problems existed, they're being remedied.

John Yodice: You know, the whole purpose of the outreach meeting was
to establish an open line of communication with the FAA, allowing for input by
the industry. And yet a number of specific examples were raised where the FAA
was going forward on its own, without ever soliciting comments. The "ticket
program" was one, and it was only the brouhaha that we all raised — that
AVweb helped raise — that allowed for the input. We have the same
situation with the "interpretive rule" on pilot readbacks to ATC, which came out
without any notice, without any opportunity for comment. Then there was sudden
decision by the FAA to withhold the airman database from industry. And how about
the Cessna 300/400 exhaust system AD, in which they were prepared to go that way
again, until we raised a stink and then they opened the docket for comments?

On the other hand, now that they seem to be opening the lines of
communication, maybe this sort of thing will happen less and less.
Hopefully.

Kathleen Yodice: Certainly, the FAA is no stranger to this sort of
thing. There's a long history of the FAA doing something, having industry raise
an uproar about it, and then withdraw it. It doesn't seem as if they're
learning.

AVweb: There does seem to be a dichotomy here. Administrator
Garvey talks continually about improved communication and partnership with
industry, and not having these kinds of surprises. But clearly, the word has not
permeated through the lower levels of the agency yet.

John Yodice: Right.

AVweb: And part of our job is to keep making these situations
visible so that something gets done about them.

John Yodice: Well, together, we're being remarkably successful,
because we've succeeded in getting the FAA to back up on a lot of these
things.

AVweb: Part of the reason is that, at least from my
perspective, Administrator Garvey has been astonishingly accessible on matters
like this.

John Yodice: We weren't able to do anything about the interpretive
rule...

AVweb: ...which is amazing, because the FAA's position on
readbacks seems to defy logic completely.

John Yodice: Yes, they're wrong on that. We discussed that at the
conference in May in the most blatant terms. The FAA was able to get a law that
says that when they interpret a regulation, that's the final word on the
subject, and the National Transportation Safety Board is forced to accept that
interpretation. If you follow that argument to its logical conclusion — any
time the NTSB makes a series of rulings that the FAA doesn't like, it issues an
interpretive rule — and pretty soon we have a pretty hollow right of appeal.
It's a dangerous thing. And that point was made at the meeting. But I don't see
any action being taken.

Kathleen Yodice: With the interpretive rule, any time you talk to
somebody at the FAA, they just give you the story line that "we're not doing
anything new" and then they shut down the discussion.

AVweb: This is clearly a two-level issue. There's the FAA's
interpretive rule on pilot readbacks that seems silly on its face. Then there's
the larger issue of the statute that gives "teeth" to such interpretive rules.
It used to be that the NTSB could trump the FAA, but under the new law, now the
FAA can trump the NTSB. So now who's watching the watchers?

John Yodice: That's a good way to put it. And can you think of a
better issue that could have benefited from a full discussion on both sides
before any determinations were made? Both pilots and controllers talking about
it, instead of the FAA lawyers unilaterally coming out with that interpretive
rule without any prior dialogue?

AVweb: Did anything else of significance come up at the San
Diego meeting that we should know about?

John Yodice: When we discussed the policy of reporting motor vehicle
infractions at the meeting, the FAA attorneys were in total disbelief
that there could be any pilot in the fleet that doesn't know that rule. They
were just shocked — notwithstanding the fact that we gave them example after
example of pilots who put down DUI convictions on their medical applications,
making it obvious that there was no intent to mislead the FAA — even one case
where a pilot put it down on his medical application within the 60-day period —
and the FAA has this notion that every pilot understands that the medical part
of the FAA is different from the security part of the FAA, and the requirement
to report one place doesn't satisfy the requirement to report to another place.
They were just in total disbelief.

Kathleen Yodice: It was pretty amazing to see their faces, and to say
"there's just no way that all pilots don't know this."

AVweb: It certainly sounds like if the FAA follows through and
does have meetings like this twice a year, it can't help but be a positive
step.

John Yodice: We agree.

Kathleen Yodice: Absolutely. I think it would be great.

AVweb: Thanks so much, John and Kathy, for taking the time to
share your perspectives with us.

Question of the Week

Picture of the Week

As aviation photos go, this was the best this week but there are some great beauty shots when you click through. In the meantime, congratulations to Daniel Gillette for this very nice photo he calls Sunset Pitch-Out. The photo is copyrighted by Gillette.